Hollingsworth V. Perry (12-144) yesterday.
Kennedy questioned attorney Ted Olson, referencing social scientific evidence presented in the judicial record by the civil rights plaintiffs, but expressing trepidation that granting equal protection did not not guarantee a specific outcome in society.
Said Kennedy, "The problem -- the problem with the case is that you're asking, really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was."
So, Kennedy is expressing both the fact the denial of equal protection to gay couples has persisted universally across the country until only recently and he doesn't know what granting equal protection will do.
Kennedy goes on to ask about the question of standing.
Said Olson after setting Kennedy straight on standing: "It was uncharted waters when this Court, in 1967, in the Loving (v. Virginia) (1967) decision said that interracial -- prohibitions on interracial marriages, which still existed in 16 states, were unconstitutional."
After an exchange between Kennedy and Olson, Olson goes on to paraphrase Justice Ginsburg in the United States v. Virginia Military Institute (VMI) case: "A prime part of the history of our Constitution is the story of extension of constitutional rights to people once ignored or excluded."
Kennedy expressed fear in the exchange that the Court would have to go "all the way" in granting equal protection.
Why the fear of freedom and equal protection from Justice Kennedy?
We expect such fear from bigots, the ignorant and the infantile who comprise much of American Christian society.
Justice Samuel Alito similarly asked, "But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the -- the concept of -- of same-sex marriage?"
After all, Alito said, gay marriage has only been around since the Internet and cell phones?
Now, there is conservative jurisprudence on display: You have been deprived of equal protection so long in this country the Court must be cautious in granting your Constitutional rights now.
Justice delayed demands justice denied for a longer period into the future.
I guess Anthony Kennedy is better than Robert Bork at least.